Enforcing family financial orders – better solutions for separating couples
Every year, thousands of separating couples apply to the courts for financial orders, either because they cannot agree or to turn an agreement into an order so as to make it enforceable.
The courts can order a person to make financial provision for a former spouse or civil partner. Sometimes the courts also make orders for the benefit of the children. The orders are made to help make sure that the needs of both partners and their children are met and, where possible, to maintain their living standards.
Although couples see the court’s order as the final stage of the legal process of separation, that may not be the end of the story. Sometimes people do not comply with court orders, either because they do not want to or because changing circumstances mean they are no longer able to comply.
Under existing law, the courts can struggle to enforce the family financial orders they make. The mechanisms for enforcement are contained in a range of legislation and court rules. Court users can find the process bewildering and parties often face significant expense and distress in trying to get what they are owed which can lead to hardship for them and their children.
In a consultation opening today, the Law Commission is seeking views on options for reform that would simplify and clarify the law and make it easier for the courts, practitioners and the public to use. In its consultation paper the Commission explores ways in which existing mechanisms for enforcing compliance can be made more effective and considers new mechanisms that might be used, in particular to bring pressure to bear on those who refuse to meet their obligations under a family financial order.
The Commission suggests reforms that would provide the courts and former partners with more useful information about the financial position of the party who has not complied. This would provide a better understanding of why a financial order has not been met, and enable the parties to make decisions about enforcement and find a solution. The Commission also makes proposals for information, support and advice to be provided for the public affected by the enforcement of family financial orders.
Professor Elizabeth Cooke, Law Commissioner for property, family and trust law, said:
"The law governing the enforcement of family financial orders is hard to understand and difficult to use. When the courts cannot enforce family financial orders, it can lead to real hardship for former partners and children and place a huge burden on the state. We need to understand whether existing mechanisms for enforcement are working as well as they might, what other powers the courts might use to tackle non-payment, and how we can find better solutions for couples when one partner is able to pay but refuses to do so."
The consultation is open from 11 March to 11 July 2015. The consultation paper is available at www.lawcom.gov.uk.
